Bolling says Constitution gives him power to give GOP Senate majority

Democrat says his lawsuit on the matter will proceed

RICHMOND – Despite a pending lawsuit, Lt. Gov. Bill Bolling said Tuesday he believes that as president of the Senate he does have the power to hand Republicans control of the evenly divided chamber.

Bolling released a memorandum that details why he believes the state Constitution gives him the power to cast the deciding vote on organizational matters within the state Senate, in which Republicans and Democrats each hold 20 seats. That is likely to be the first controversial issue taken up on day one of the General Assembly's 2012 session.

"In an effort to make certain that we can get to the business of the people of Virginia as quickly as possible when the Senate convenes on Jan. 11, I have decided to issue this memorandum, setting forth my conclusions about the lieutenant governor's tie-breaking authority," Bolling said.

A lawsuit filed last month by Sen. Donald McEachin, D-Henrico, contends that while the lieutenant governor does have the tie-breaking vote in the chamber, the Constitution prevents Bolling from voting on certain matters, including organization of the Senate. McEachin was seeking a temporary injunction to keep Bolling from voting on the set-up of the Senate in order to force a power-sharing agreement between the parties.

Richmond Circuit Court Judge Beverly W. Snukals refused to grant the temporary injunction, saying it was premature for a court to weigh in on the matter before Bolling even casts a vote.

Bolling agrees that the Constitution prohibits him from voting on certain issues such as the budget, constitutional amendments, the selection of judges and any issue which requires a supermajority vote in the chamber.

But he says organizational matters do not fall within the list. The crux of Bolling's argument is that in all of the relevant areas where he is prohibited from voting the Constitution includes wording such as "be agreed to by a majority of the members elected to each of the two houses," and "by the vote of a majority of the members elected to each house of the General Assembly."

Nowhere in the document, Bolling argues, are similar phrases used with regard to organizational matters.

Bolling said he based his interpretation on state Supreme Court decisions that say provisions of the Constitution should be given their "ordinary meaning," and a 1996 legal opinion of then Attorney General A.E. "Dick" Howard, issued when the Senate was evenly split and Democrats were attempting to take control of the chamber using the lieutenant governor's tie-breaking vote.

The issue became moot in '96 when then conservative Democratic Sen. Virgil Goode broke ranks with his party to force a power-sharing agreement with Republicans. Goode later became a Republican while serving in Congress.

McEachin, chairman of the Senate Democratic caucus, said he welcomes Bolling's view that the lieutenant governor is restricted from casting a tie-breaking vote on certain issues, but still maintains that organizational matters are among them McEachin insisted he is still going forward with his lawsuit.

"It seems he agrees with the portion of our lawsuit that argues he does not have the power to break ties in matters regarding the state budget, the election of judges and constitutional amendments," McEachin said. "The legal question of whether the lieutenant governor has the right to break ties in regards to setting Senate rules and organization is still pending before the Richmond City Circuit Court."

"I recognize that senators on both sides of the aisle may be disappointed with my conclusions, albeit for entirely different reasons," Bolling said. "However, throughout my service as lieutenant governor I have tried to preside over the Senate in a fair and impartial manner, and I will continue to do so."

Leaders of the Senate's GOP caucus — Sen. Thomas K. "Tommy" Norment, who plans to serve as majority leader based on Bolling's tie-breaking ability, and Sen. Ryan McDougle, who expects to be caucus chair — praised Bolling for his "sound judgment."

"Lt. Gov. Bolling has again demonstrated his commitment to the Constitution and his dedication to the Senate of Virginia," Norment said. "By specifically detailing the powers of his office, he has brought sound judgment and a balanced, judicious perspective to this situation. He has once again set the standard for future lieutenant governors."